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Brian Allen Bass v. George Neotti

August 12, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


Plaintiff Brian Allen Bass, a California state prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violation of his Eighth Amendment right to be free from cruel and unusual punishment. The matter is before the Court on Defendants' motion for summary judgment. [Doc. No. 52.] Because Plaintiff is incarcerated and proceeding without counsel, the Court notified him of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). [Doc. No. 62.] Plaintiff filed an opposition to the motion, to which Defendants replied. [Doc. Nos. 67 & 68.] For the following reasons, the Court GRANTS Defendants' motion.


In his complaint, Plaintiff sets forth three causes of action: (1) violation of his Eighth Amendment right to be free from cruel and unusual punishment due to the officer defendants' use of excessive force and the supervisor defendants' failure to train the officer defendants; (2) violation of his First Amendment right to freedom of speech; and (3) violation by the officer defendants of his Eighth Amendment rights due to the inadequate medical care he received for his alleged injuries. The Court previously dismissed Plaintiff's claims for damages against all defendants in their official capacities based on their immunity from suit under the Eleventh Amendment. The Court also dismissed Plaintiff's claims against the supervisor defendants, his Eighth Amendment deliberate indifference claim against the officer defendants, and his First Amendment freedom of speech claim against the officer defendants. The only claim that remains is Plaintiff's Eighth Amendment excessive force claim against the officer defendants (hereafter referred to as "Defendants").


This matter arises out of events which occurred while Plaintiff was incarcerated at R. J. Donovan Correctional Facility, in San Diego County, California. The following facts are not reasonably in dispute unless otherwise indicated.*fn1

On October 15, 2008, at approximately 2:30 p.m., Correctional Officer ("CO") Lakeisha Marshall was monitoring the day room floor while general population inmates were allowed to take showers. After noticing Plaintiff wandering about the day room floor, CO Marshall ordered Plaintiff to take a shower or return to his cell. Plaintiff complied with the order to take a shower, after which CO Marshall observed him once again wandering about the day room floor. CO Marshall ordered Plaintiff to return to his cell for lock-up. Plaintiff responded by saying "wait a minute" and proceeded in the direction of other cell doors (rather than his own). CO Marshall followed Plaintiff and once again verbally reprimanded him for not returning to his own cell. Plaintiff turned around, faced CO Marshall, told her she was acting "like a bitch," and dared her to spray him with mace. Plaintiff then returned to his own cell.

CO Marshall notified Facility Program Sergeant Vasquez of her encounter with Plaintiff. Sergeant Vasquez and CO Theifes, along with several yard staff members and CO Marshall, went to Plaintiff's cell and ordered him to step out of the cell and place his hands on the wall so that he could be searched. CO Vanderweide kicked Plaintiff's legs apart and conducted a clothed body search of Plaintiff.

According to Plaintiff, as recited in his deposition testimony and his opposition brief, CO Vandeweide "talked dirty" to him during the body search and hit his testicles three times, at which point Plaintiff removed one of his hands from the wall to cover his groin area. CO Vandeweide then took Plaintiff down and he and the other staff members beat Plaintiff with their fists and batons. According to Defendants, during the clothed body search, Plaintiff stepped away from the wall on his left foot, spun around, and swung at CO Vandeweide with his right hand, striking CO Vandeweide in the left eye with enough force to cause CO Vandeweide to lose his balance and stumble backwards.

Plaintiff then punched CO Vandeweide in the nose, and CO Vandeweide responded by punching Plaintiff in the face. Plaintiff then lunged at CO Vandeweide. Sergeant Vasquez ordered Plaintiff to get down on the ground, and Plaintiff ignored him, continuing the assault on CO Vandeweide. Sergeant Vasquez struck Plaintiff on his back repeatedly and CO McCurty grabbed Plaintiff by the back of his shirt while Plaintiff continued to throw punches at CO Vandeweide. CO Vandeweide grabbed Plaintiff around his upper torso, and with the assistance of COs McCurty and Thiefes and Sergeant Vasquez, took Plaintiff to the ground.

Plaintiff continued to resist despite being ordered to comply and lay on the ground. CO Montoya struck Plaintiff with his expandable baton on Plaintiff's buttocks twice. While laying on the ground, Plaintiff continued to struggle and engage in a physical altercation with CO Vandeweide. Plaintiff was kicking his legs while staff members attempted to place him in restraints. CO Marshall struck Plaintiff with her expandable baton on his lower right leg. CO McCurty pulled Plaintiff's hands around and to the center of his back, and CO Nieves placed him in handcuffs. CO Marshall placed leg irons on Plaintiff. Once Plaintiff was restrained, he was not struck, punched, kicked, or otherwise physically assaulted by any of the staff members. Plaintiff was then escorted out of the building by COs Nieves and Robles, to be examined for injuries by a nurse. Plaintiff suffered bruises on his arms and legs. His medical report indicated no injury to his groin area. He did not sustain any lasting injuries.


Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The Court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255. The Court's inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

A party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, on an issue for which its opponents will have the burden of proof at trial, the moving party can prevail merely by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." ...

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